Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13297/2012

THE IMMIGRATION ACTS

Heard at Birmingham
Determination Promulgated
on 7th May 2013
on 18th June 2013

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AS (Iraq)
Respondent

Representation:

For the Appellant: Mr Mills Senior Home Office Presenting Officer.
For the Respondent: Miss Rutherford instructed by TRP Solicitors.

DETERMINATION AND REASONS

1. On 14th March 2013 the Upper Tribunal found the determination of a Panel of the First-tier Tribunal, who allowed AS’s appeal against the refusal to revoke the deportation order signed on 11th August 2009, contained legal errors such that it was set aside.

Background

2. AS was born in late August 1980 and is a national of Iraq. He arrived in the United Kingdom in February 2002 and applied for asylum which was refused, on 12th April 2002, although he was granted four years Exceptional Leave to Remain (ELR).

3. In 2002 the appellant met SM, a British citizen. They began cohabiting in mid 2003 and married on 23rd October 2004. They have four children A born in 2005, Z born in 2006, L born in 2010, and R born in 2011. Both L and R were conceived and born after AS was served with the notice of intention to make a deportation order.

4. On 24th February 2006 the appellant was convicted of rape and on 2nd June 2006 sentenced to five years imprisonment. In July 2008 a decision was made to deport him from the United Kingdom. The appeal against the decision was dismissed on 19th August 2008 and a signed deportation order served on 11th August 2009. The appellant was, however, not removed and further representations were made in August 2009 in support of an application to revoke the deportation order which was refused on 27th October 2009.

5. Further and more detailed representations were then made supported by independent reports from experts which led to a further asylum interview and the issue of a letter dated 25th January 2011 again refusing to revoke the deportation order. The appellant appealed that decision to the First-tier Tribunal which was listed for hearing on 18th March 2011 although on 25th January 2011 the respondent withdrew the decision. No further steps appear to have been taken by the Secretary of State to consider the representations and so on 23rd April 2012 the appellant’s solicitors sent to the respondent a Judicial Review Pre-Action Protocol letter which resulted in a further refusal to revoke the deportation order dated 30th May 2012. It was the appeal against that decision which was considered by the Panel.

6. In her sentencing remarks for the rape offence Her Honour Judge Cavell stated:

Rape in any circumstances is always a very serious offence. It is no consolation to your victim and certainly no excuse that you did it because you had had too much to drink. It is quite plain on the facts that you were determined to get your victim over into your presence. It was the early hours of the morning. You persisted and persisted and eventually because of your rather devious way of doing it she came and trapped in the back of a car you abused her, you forced yourself upon her, grabbing her by the head for oral sex and finally you admitted on the day of the trial, raping her. She was struggling, she was plainly very much distressed and your reaction was to tell her to shut up. There is some evidence afterwards that you were saying you were sorry and I only hope that was genuine. Had you contested the matter in front of a jury the proper sentence in my judgment would have been six years. You pleaded guilty at trial therefore your victim did not have to attend court I am told and certainly did not have to undergo the ordeal of giving evidence. But having said that she would not have known that until the morning and therefore she would have been waiting for trial knowing she would have to relive the ordeal to give evidence but certainly you are entitled to a limited degree of credit for that plea late in the day as it came. I find that the comments reported in the pre-sentencing report troubling. Your lawyers on your behalf confess they do not understand them. What I propose to do is to discount the sentence by less of course than if you had pleaded guilty at the earlier stage but to reduce the six yours to one of five years imprisonment.

7. AS was also ordered to register under the Sex Offenders Act for life. There was no appeal against conviction or sentence.

8. The Pre-sentence report, dated 25th May 2006, [page 36-41 A’s bundle in appeal IA/05694/2011] records that AS’s version of events directly conflicted with that of the victim which is reflected in his maintaining a not-guilty plea until trial. The circumstances of the offence are recorded as follows:

AS said that after finishing work that day, he met up with [J], the victim’s husband and a fellow countryman. [J] and his partner (the victim) were invited to bring their child to a birthday party that was to be held at the defendant’s home later that evening. A barbecue and alcohol were going to be provided. Throughout the evening, [J] and AS drank spirits and champagne which resulted in [J] falling asleep due to his intoxication. Arrangements were made for him to stay at the defendant’s flat and the victim returned home with their two year old son.

In the small hours of the following morning, the victim received a telephone call which registered to be from [J’s] phone. The victim was surprised to hear AS, who began to tell the victim that [J] had been having affairs with other women and was also involved in heavy gambling. She was informed that if she wanted all of the information, then she would need to return to the flat at 5.00am so that he could meet her outside and tell her. Shortly afterwards, the victim rang AS and said that she was upset and so unable to sleep so she would come over then. He agreed to meet with his victim upon arrival and disclose the situation. The victim put clothes over her pyjamas and drove to the flat, parking by the side of AS’s car, outside his home. She then phoned him to state her arrival so that he could meet with her and disclose information.

AS says that he came down and asked her to get out of her and into his which, he says, she did. When challenged about him physically forcing her into the back of the car, he denied doing so. He then said that as he began to disclose her partner’s infidelities, she began to cry and so he put his arm around her. In contradiction to the victim, he says that they began to kiss and perform foreplay on each other. AS told me that at that point, even though she was crying and telling no, as she was wearing a short skirt, make up and lipstick and had also parked in a dimly lit area, he took this as an indication that she wanted to have sex with him. When I challenged him about his victim wearing pyjamas under the clothing, he was not able to explain his justification for her wearing a short skirt. I challenged him with regard to his statement to the victim that “she was English so should be used to it”. He denies saying this but it was evident throughout our interview that he holds negative attitudes towards women.

The defendant owns no responsibility for the offence against his victim, blaming her “coming onto him” although he acknowledges that she was distressed at the time due to his revelations about her partner. His explanation is that he admit[s] to doing wrong but only because he had sex with another woman while his wife was in bed and 8 and a half months pregnant.

9. There is reference in to the report to the effect upon the victim and further details, including the forced removal of the victims hijab during the incident, which need not be set-out at length as they can be read in the report if required. At section 2.6 the author states:

2.6 Lifestyle and Associates

The nature of his offence and also the betrayal of his friend shows that AS is prepared to manipulate others in order to secure sexual gratification. This offence was premeditated, evidenced by the way that he lured his emotionally overawed victim into a position where she could be raped. AS also exploited his friend’s vulnerability when under the influence of alcohol in order to access his partner. Additionally, by committing this offence, he deceived his own wife who was 8 and a half months pregnant at the time and asleep near to where the offence took place.

10. In section 2.9 it is stated:

2.9 Thinking and Behaviour

By committing this crime, AS has shown that he lacks consequential thinking skills and is unable to give appropriate consideration to how his behaviour may have impacted upon his victim and others. He has given an indication of his attitude towards women and their role within society as being objects of immediate sexual pleasure for him rather than an individual who can voice her wishes to reject his advances. Whilst in prison or the community, should his sentence be long enough (three years in the community of twelve months or more in prison), he will have the opportunity to undertake offence focused work that will assist him in exploring the factors that enabled him to commit a sexual offence. During that time, he will learn skills in order to appreciate how his attitude and actions affect others and, hopefully, be able to moderate his behaviour accordingly and to reduce any future risk of similar offending again.

11. The risk of re-offending was stated to be low but the risk level of serious harm is high. Those at risk are stated to be women as a result of sexual attack. The risk is said to be the greatest when AS is under the influence of alcohol, when he wants sexual access to another woman other than his wife. Risk is likely to be increased when he can convince another woman he has information to disclose that is pertinent to their well being.

12. At pages 3-35 of the same bundle is the OASys report, also completed in 2006, which summarises the assessment of risk [section 10 of report, page 32 of bundle] and concludes that in the community AS is a low risk to the public and children but a high risk to a known adult. High risk is defined as there being an imminent risk of serious harm. The potential event is more likely than not to happen imminently and the impact would be serious.

13. The original bundle contains two letters dated July and October 2010 and a further risk assessment report form the Probation Services dated 9th December 2010 [pages 42 to 51 of the original bundle]. The author of the report is described as being a Probation Officer and Programme Facilitator in the West of Midlands Regional Sexual Offending Unit. At page 3, section 1.4 is a summary of the offence. At section 3.1 is an examination of Dynamic Risk factors in which the following is stated:

3.1 BELIEVING MEN SHOULD DOMINATE WOMEN

[AS] acknowledged that his culture in Iraq, determines that ‘men are in control’. During the Induction Programme, he identified, as part of his Pro offending Thinking, that if a woman is educated she is entitled to share opinions because she can contribute to the household expenses and she is equal to a man. An uneducated woman should take care of the children and the household tasks.

During the Post Treatment Meeting, AS admitted that, at the time of his offending, he felt shocked and betrayed because the victim’s partner had raped him and that he was hurting so badly. He felt like a weak person who was unable to defend himself, but he did not want his abuser to get away with the abuse he had inflicted. He wanted the victim to be aware of her partner’s actions so she would leave him. However, when she did not believe what AS had told her, he said he told himself: “I’m going to get him back. If I can’t get him, I will get the person closest to him.”

14. The author of the report notes AS continued to deny any sexual motivation for the attack but had made the following statement: “I raped an innocent person and friend who didn’t deserve it and I’m sorry deeply in my heart and I know what I’ve done.”

15. I note, however, the Pre-sentence report records AS’s case as being that the sex was consensual with no mention of any element of revenge or he himself being a victim of a similar experience at the hands of the real victim’s partner.

16. The report dated 9th December 2010 outlines the courses undertaken by AS [AS’s original bundle, page 48, section 3.1 of report]. AS’s belief that men dominate women was identified as a dynamic risk factor and in section 4.2 it is recorded:

4.2 AS has completed the Better Lives Programme and he participated in all sessions. He related particularly well to the Wheel of Life and he was able to determine how his new thinking about himself and his family fits into each of the Goods. He was able to identify an affective Keep safe Plan and he has his wife and her family in his support network.

I would assess that this Programme has addressed AS’s Treatment Needs.

17. In section 5, [AS’s original bundle, page 50] headed Current Risk Assessment it is recorded:

“In my judgment, AS is managing his risk and he has changed aspects of his thinking behaviour related to the dynamic risk factor outlined in this report. This is evidenced by his work on both the Induction and Better Lives Programmes.

AS is assessed on EOASYS as being at a medium risk of harm to a known in the community. I believe that the existing protective factors outlines above will enable him to reduce this risk level in the future.”

18. Situations or events said to raise risk are said to be (a) any breakdown in his family situation, (b) coping with negative thoughts and feelings if he is prevented from securing employment, (c) any situation where he is left feeling emasculated and wants to regain power, (d) feelings of revenge and being able to gain access to a potential victim. [AS’s original bundle, page 51, section 6.2]

19. Possible warning signs are said to be (a) abusing alcohol and socialising with friends rather than meeting his family commitments, (b) ruminating about other people’s behaviour towards him, which could result in his wanting to take revenge. [AS’s original bundle, page 51, section 6.3]

20. AS also provided in his original bundle [pages 53-96] a report from David Thornton, PhD, headed: Scoring Guide for Risk Matrix, 2000.9/SVC. It is dated February 2007. Risk Matrix 2000 (RM2000) is said to be a statistically derived risk classification process for males over the age of 18 who have been convicted of a sexual offence. AS relies upon pages 55, 63 and 67 of the report and the proposition that although a significant number of those in the medium risk category re-offence, the major (nearly three quarters) do not offend against new victims.

21. AS’s appeal against the decision to deport him, at which the above material would have been considered, was dismissed by the AIT on 19th August 2008.

22. AS’s chronology refers to a reference to the Children’s Champion by UKBA seeking advice in splitting the family on 28th September 2008 and a record of the Childrens Champion’s reply to UKBA on 4th June 2009, noted in a bail summary dated 22nd June 2009, that ‘if the subject has no changes in circumstances they support the Judge’s ruling to deport AS’.

23. Rather than agree to co-operate with the deportation process, further representations were made by AS in July 2009 and after the signing of the deportation order and his re-arrest for the purposes of removal on 19th August 2009, an application was made for the order to be revoked by his representatives on that same day - only eight days after the order was signed.

24. Further expert evidence was commissioned from a Consultant Forensic Clinical Psychologist Ian Stringer, dated 6th November 2009, and reports from Renee Cohen an Independent Social Worker. The first is dated 13th August 2009 and the second 14th March 2011. There is also a report by Birmingham City Council prepared at the request of UKBA dated 7th December 2011.

25. Having set out the account provided by AS Ian Stinger states at page 21 of his report:

Thus AS’s account carries a number of problems:

He has changed his account of his motivations. It is not possible to discriminate between accurate and inaccurate account.
Cultural expectations of the role of woman in Iraq and English society suggest his account of perceiving the victim as ‘easy’ because of her manner of dress, make-up and behaviour, suggest he misunderstood the social context.
He stated he only drank heavily on the night he sexually assaulted the victim. His account to me suggests he had consumed alcohol on this night out with J to be unaware he himself was being assaulted. This suggests AS has consumed large amounts of alcohol on two known occasions, both times resulting in sexual activity. This suggests his alcohol consumption may have been problematic.

Overall, from a psychological perspective, AS’s account appears partially unsubstantiated and somewhat erratic and varies from time to time. His English language skills appear adequate. Psychometric results from this assessment suggest he has no limitations of ability or capacity which might functionally relate to either his offence behaviour or his erratic account.

26. In relation to an issue identified in the later 2010 assessment of being of concern, AS believing men should dominate women, Ian Stringer, on page 26, writes:

Distorted Attitudes: An earlier account by AS of his motivation in his offence suggested his victim was ‘fair game’ because she wore lipstick, a short skirt and sat in a car with him. Observations note “[AS’s] attitudes toward women…their role within society as being objects of immediate sexual pleasure for him rather than an individual who can voice her wish to reject his advances”. This suggests an important motivational factor in AS’s assault was a difference in expectation. In this case the most obvious explanation is that the difference arises from culture (‘Culture’ being the social environment in which people make meaning of their existence by reference to shared stories, traditions, and experiences. Bruner, 1990).

An Asian Muslim psychiatric colleague informs me that AS’s account of the victim is a widely held view by men of western women through Islamic culture (personal conversation, Dr Fernando, 22/10/2009).

27. Ian Stringer accepts he is not an expert in trans-cultural sexual offenders attitudes but when examining common factors found in abusive males in relationships found AS has nine low risk factors, four medium risk factors and two high risk factors, identified as traditional sexual ideology and alcohol use, which are said to be from a psychological perspective the most salient factors requiring treatment.

28. Ian Stringer refers to the difficulties in assessing risk of reoffending which he states on page 35 he cannot estimate as being other than 50:50. In his conclusion, page 40, he states:

AS has committed a serious sexual assault, and admitted his guilt. Psychological and risk assessment are extremely difficult in this case because of the limited applicability of assessment tools which derive from our society, not AS’s Arab/Islamic society. Lack of uncorroborated information about his personal history is a further barrier to assessment.

Arising from these difficulties, it is not possible to make an accurate assessment of recidivistic risk, as the applicability of known actuarial factors to AS’s culture is not known. Because of this it is not possible to say whether the factors are either applicable – not applicable – or the degree of risk which AS poses at this time.

29. Renee Cohen’s reports also raises a number of issues. The first is that AS is not the natural father of T although T believes he is. T’s biological father is SM’s first husband who is stated to have left before T’s second birthday.

30. Ms Cohen found evidence of a significant and meaningful relationship between AS and the children and between AS and SM. The children are said to be emotionally dependant upon AS as their father to whom they are attached and that AS is a good father to them.

31. Ms Cohen states that in her opinion T believes AS is his father and that if AS were to be deported it would be extremely difficult for T and potentially emotionally very damaging for him. On the final page of the report dated 13th August 2009, Ms Cohen sets out her conclusions as follows:

The following points need to be taken into consideration:

It is my opinion that there is no doubt whatsoever that family life exists between AS and his three children, T, A and Z and his wife SM. It is my opinion that AS is a loving and responsible father who plays a crucial role in the life of his children. The children and his wife have emotional interdependent relationships with him which are mutual and reciprocal.
It is my opinion that if AS were to be deported to Iraq that would destroy family life for each member of this family. SM will be a much less effective parent without her husband and she is likely to become depressed and stressed which will have a negative effect upon her functioning as a parent.
It is my opinion that if AS were to be deported thus separating him from his children, that is almost certain to have a damaging impact upon the emotional development of all three children. T in particular would be devastated to be separated from his father and when he is told the truth about his parentage, the loss of both “fathers” is likely to have an even further damaging impact upon him. There is evidence that those children who are brought up without proper contact with a father are amongst the most troublesome in our communities. (Please see Appendix A & Appendix B)
It is my opinion that it is neither reasonable nor feasible to expect SM and the children to relocate to Iraq in order to continue their family life with AS. It is my opinion that it would be utterly against the best interests of all three children to be uprooted from all that is familiar (including close ties with grandparents, aunts, uncles and cousins); all that is safe and secure to be placed into an alien environment which is likely to be neither safe nor secure.
It is my opinion that it is not at all possible to continue family life at a distance by keeping in contact via modern means of communication. That is quite different from sustaining meaningful, significant and dynamic relationships which requires regular and face to face contacts and which underpins good psychological and emotional development and mental health.
It is my opinion that SM’s parents and her siblings and their children need to be taken into account with regard to the prospect of the family relocating to Iraq. It is my opinion that Ms LM would not be able to bear being separated from her daughter and her grandchildren. It is my opinion that T in particular has an extremely close bond with his grandparents and if he were to be separated from them that is likely to have an emotionally damaging impact upon him.

32. Ms Cohen’s second report refers to AS undertaking the Sex Offender Group Programme. It maintains the position set out in the first report that the best interest of the children require AS to remain in the United Kingdom.

33. The report by Birmingham Social services [AS’s appeal bundle for FTT appeal, number 3, pages 357-387], commissioned at the request of UKBA and written after a home visit on 7th December 2011, states there are no concerns regarding the children’s health or welfare and records that AS has attended the Sex Offender Management Unit and is considered a medium risk due to his offence although they have no concerns regarding him. He is not considered a risk to children and he has thirteen more years on the sex offenders register. It was noted that the children have an excellent relationship with both parents and how positive T’s relationship is with his father.

34. The most recent report before the First-tier Panel was one prepared by Dr Sarah Newth a Consultant Child and Adolescent Psychiatrist. It is dated 31st July 2012 and is to be found at pages 398-410 of bundle 3. The conclusions are set out in the report and at paragraph 10.12 of the determination of the First-tier Tribunal. It notes that T has in the past been a well adjusted young man with no mental health issues but since becoming concerned about AS’s possible deportation he has felt low in mood at times. Dr Newth states that in her opinion T is suffering from an adjustment disorder as defined in DSM IV. If his father is deported she is concerned that “this bright and talented young man will become more angry and show his distress as adolescent boys often do by becoming confrontational, finding it hard to avoid getting into fights and getting into trouble despite the best efforts of his mother”. She continues in the following paragraph:

Deportation would be a permanent separation from someone who he is dependant upon both emotionally and practically. It would in effect be a bereavement. He has already as described above had two very significant separations from his birth father and stepfather and a third separation would be yet another serious set back for him. Three serious setbacks within 12 years would be likely to affect his ability to build trust relationships and make it harder for him to build up enduring relationships as he enters adolescence and adulthood. He is currently developing into a teenager and needs a male role model to enable him to sort out his development and adult identity.

35. The existence of family life between the children and AS and the nature and quality of that family life as identified in the expert reports are preserved findings.

Discussion

36. This is an appeal against the refusal to revoke the deportation order signed on the 11th August 2009. The provisions in the Immigration Rules relating to the revocation of a deportation order are set out in paragraph 390 of the Rules which specifically states:

390. An application to revocation of a deportation order will be considered in the light of all the circumstances including the following:

(i) The grounds on which the order was made;

(ii) Any representations made in support of revocation;

(iii) Interests of the community, including the maintenance of effective immigration control;

(iv) Interests of the applicant, including any compassionate circumstances.

37. Paragraph 390A states that where paragraph 398 applies the Secretary of State in assessing the application will consider whether paragraph 399 or 399A applies and, if it does not, it would only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

38. The grounds on which the order was made are set out above. AS was convicted of rape and his deportation is said to be conducive to the public good.

39. The submissions made in support of revocation focus, primarily, on the effect on the children but also upon his wife SM. I accept this is a family splitting case and that it cannot be expected that SM or the children will return with AS to Iraq. The family dynamics at the time of the appeal before the First-tier Tribunal was of a close nit family unit living together and meeting the needs of the children. It is submitted deportation is disproportionate in light of the effect upon the children and in particular T, as set out in the reports. Reference is made to the opinion of both Ms Cohen and Dr Newth that indirect contact is not an adequate replacement for the physical day to day contact the children have with their father.

40. To enable me to assess the interests of the community it is necessary to bring the factual matrix that exists in this family up to date at this stage of the determination. Miss Rutherford in her skeleton argument refers to the fact that the family dynamics have altered recently with AS leaving the family home in December 2012 as a result of his having been imprisoned for an offence of harassment. In his witness statement dated 4th May 2013 AS states:

1. I confirm that S and I are still committed to one another but we cannot currently live together. I was convicted of sexual harassment of my sister-in law and was sentenced to 16 weeks in prison on 28th December 2012. I very much regret what happened. I feel terrible about it. I have apologised to S frequently and am desperate to make it up to her and her family if they give me a chance. I just want everything back to normal.

2. I was released on 1st February 2013. Since then S’s family have been so shocked and angry that they have prevented me from returning to live with her (they all live in the same area)….

41. The reference to S is clearly to SM, AS’s wife. He was sent to Stockton-on-Tees initially but on 10th April relocated to the West Midlands to allow him to be near the children who he sees twice a week or more if possible. The family do not co-habit.

42. In his oral evidence AS admitted to sending text messages, cards and photographs which must have been of a sexual nature in light of the conviction. He claims he did this as he has been sitting in the house and he just ‘lost his head’. He clearly associated his inability to work as a factor in his re-offending. AS stated the time he spent in Stockton-on-Tees was a ‘wake up call’, although when asked why the conviction for the rape offence and five year sentence was not a ‘wake up call’, he claimed he made a mistake when he was first convicted. He has devoted the last four years to his family and that he did not know what happened to make him re-offend. He claims if he was able to work things will be different and mentioned plans to set up a barbers shop in the UK.

43. SM in her evidence is clearly aware of both offences and indicated that all she is aware of in relation to the recent offence is that AS sent cards, texts and sexual DVD’s. SM is clearly devoted to AS and her family and spoke of them as being a close family able to cope on their own. She spoke of the family being on a list for house swap in the Birmingham area so they may live together again. When asked in cross examination whether the fact there has been a second conviction for an offence of a sexual nature was of concern to her, SM stated this time AS was depressed. She had told him to go to see the GP but he did not.

44. Paragraph 390A refers to 398 which is a rule applicable if a person is claiming deportation would be contrary to the UK’s obligations under Article 8 ECHR as AS is in this case. As he has been convicted of an offence for which he has been sentenced to more than four years his deportation is stated to be conductive to the public good [398(a)]. The Secretary of State has to consider whether 399 or 399A applies and, if not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

45. Neither paragraphs 399 or 399A apply as they are only relevant for those falling within 398 (b) or (c) which AS is not. The issue under the Rules is therefore whether there are ‘exceptional circumstances’ meaning that the public interest in deportation will be outweighed by other factors.

46. On the side of AS is his devoted wife and children. I accept there is evidence of a strong family unit and that the best interests of the children will be met by all four children being brought up by their mother and father (biological or step) in the family unit. The loss of such a unit and the splitting of the family if the foreign national criminal is deported cannot in itself be said to be exceptional as that is the effect of removing part of the whole. I accept that if AS is removed the best interests of the children will be met by them continuing to reside in the UK with their mother. Although SM refers to the distress she will feel I do not find it proved that her standard of parenting will fall below a level that will place the children at risk. It will be difficult for her but SM acknowledges the existence of her own family and the support they give to the children, as reflected in Ms Cohen’s report.

47. The children will be distressed if they lose their father from the family and the experts refer to three periods of such loss for T. There is now, of course, four as a result of AS’s further offending of a sexual nature. On the one hand AS claims he should not be deported as his family need him and mean the world to him, yet on the other he claims that for reasons he cannot explain, but which he indicates may have been because he was bored and unable to work, he jeopardises all he claims to be the dominant factor in this case by offending and being imprisoned again at a time he was aware his appeal against the refusal to revoke the deportation order had not been resolved.

48. I accept there will be emotional hardship and distress for the children and particular for T who has been diagnosed as suffering from Adjustment Disorder. There is reference to potential effects upon T but inadequate reference to any published works relating to how long such a condition will last. Will T be affected permanently or until he accepts the situation, with help if necessary? Will there be lingering feelings and if so are they a natural consequence of the situation and/or likely not to be severe enough to require additional attention or treatment? The evidence fails to identify whether there is a recognised treatment regime for Adjustment Disorder and focuses on removing the potential cause, AS’s deportation, rather than what is available to assist T if AS is removed. For example in terms of therapy the removal of AS will not disrupt other important elements of T’s social support such as his mother and grandmother who he is stated to be very close to. Has work been undertaken to assess T’s range and effectiveness of coping skills, learning better ways of dealing with stress and any feeling of anger feel, etc? Whilst I accept there is a possibility of T becoming aggressive a lot of what may occur may also be part of his adolescence and transition from man to boy. The report refers to the separation having similar effects as a bereavement for which counselling and other support is available.

49. I accept T and the other children may not have a father figure as unfortunately a substantial number of children in the UK do not, but it has not been shown on the evidence that the effect will be such that AS must be allowed to remain at all cost. Although the language of Ms Cohen’s report is emotive, describing ‘devastating consequences for the children’ I find it has not been proved that any consequences are such as to prove that on the facts of this case exceptional circumstances have been shown to exist such that the appeal must be allowed under the Rules.

50. As Miss Rutherford indicated in her submissions, that fact AS fails under the Rules is not determinative as he may be able to succeed under Article 8 ECHR. I accept this submission as under Article 8 domestic case law there is no test of ‘exceptional circumstances’ although this term is referred to in Strasbourg jurisprudence from time to time.

51. When considering Article 8 issues it is necessary to considered the questions set out by Lord Bingham in paragraph 17 of the judgement in the case of Razgar [2004] UKHL 27 are which are:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well- being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

52. Both advocates accepted that the only issue under Article 8 ECHR is one of proportionality. For AS his case is that relating to his wife and the children which I have set out above. It is submitted the best interests of the children are the determinative factor and that the deportation order cannot be sustained and must be revoked.

53. In relation to the Secretary of State’s case, the offence AS committed is one that has a high degree of revulsion associated with it. The circumstances of the offence are a further cause for concern for the reasons set out in the pre-sentence report. In RE (Turkey) v SSHD [2008] EWCA Civ 249 the Court of Appeal said that the public interest dictated that rape was a crime that caused much revulsion and in these circumstances, only the most pressing compassionate circumstances could outweigh the need to remove.

54. An additional element in this case is AS’s recent offence. He claims he ‘lost his head’ and stated he would avoid further offending by working. AS’s replies are a further cause for concern as they continue to demonstrate a lack of insight into his conduct and possible avoidance of responsibility. The re-offending also demonstrates that AS chose to ignore all he allegedly took on board and learned on the Sex Offender Programme or that such work has failed. I note the offence involved a known female (his sister in law and SM’s sister) which is a category identified as being at high risk of sexual offending from him in the reports.

55. AS’s representatives refer to the delay in this matter in the papers and the fact that the deportation order was only made when they threatened JR. In Yousuf (Somalia) v SSHD [2008] EWCA Civ 394 the Court of Appeal said that the amount of time the Home Office allowed to pass before serving a deportation order did not create any kind of legitimate expectation that the claimant would not be deported, but it did mean that the Home Office, and, in turn, the Tribunal, had to consider a period in which, unlike most deportees who had offended, the claimant had been able to show himself capable of living a law abiding life. In this case AS had the opportunity to prove he was capable of not offending and that his family is as important to him as he claims. Despite all that has been said on his behalf it is AS who is responsible for the situation in which he now finds himself.

56. ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 demonstrates that the interests of a child affected by a removal decision are a matter of substantial importance, and that the court must proceed on a proper understanding of the facts relevant to those interests. I have therefore considered the evidence relating to these children with great care and having done so find that, whilst of great importance, they are not the determinative factor. I accept that the fact future contact will be indirect is not the best option for the children following separation, but this is the only practical way to maintain ties and all that may be available following deportation in the absence of visits. I accept that exclusion for ten years and the loss of AS as a father figure is a foreseeable consequence of deportation with the disruption and related issues identified in the reports. But AS is a convicted rapist who has shown his removal is necessary for the protection of female members of the public to prevent further criminal acts of a sexual nature and to deter others from such acts. I find the Secretary of State has discharged the burden of proof upon her to the required standard to show the refusal to revoke the deportations order is proportionate.

Decision

57. The First-tier Tribunal Panel materially erred in law. I have set aside the decision of the original Panel. I remake the decision as follows. This appeal is dismissed.

Anonymity.

58. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 14th June 2013